OTT communication apps breathed a sigh of relief as the Union Minister for Electronics and Information Technology, Ashwini Vaishnaw, on Monday (December 18) tabled the much-awaited Telecommunications Bill, 2023 in Parliament.
Introduced in Lok Sabha as a finance bill, meaning no compulsion for approval by Rajya Sabha, the bill seeks to replace the decades-old and archaic Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession).
The proposed legislation elucidated a new definition for the word ‘telecommunication’ while retaining powers for the sector regulator TRAI.
“…telecommunication means transmission, emission or reception of any messages, by wire, radio, optical or other electromagnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception,” read the new definition.
The biggest takeaway of the bill was that the Centre kept over-the-top (OTT) communication apps outside the ambit of the new bill and skipped the mention of such platforms altogether.
The move brought a major relief for OTT communication apps as previous drafts of the Bill extended the scope of the definition of telecommunications services beyond telcos to OTT communication apps such as Meta-owned WhatsApp, Signal, Skype, Telegram and others.
On the other hand, the move deals a major blow to telecom operators, who, previously, actively batted to bring such apps under the regulatory ambit. Telecom operators had also pitched the TRAI to direct platforms, consuming higher bandwidth, to foot network costs to level the playing field between the two.
With this development, the Centre has effectively ruled in favour of Indian startups that made a beeline for the government warning against any such proposal citing violation of net neutrality rules. The move also quells fears of Indian startups about additional compliance mandates, adverse regulations, onslaught of telcos and interception of messages by authorities.
The new draft also skips the mention of specialised communication services such as machine-to-machine communication, in-flight and maritime connectivity, which were present in the previous iteration.
The Finer Print
The bill also proposes mandatory biometric identification of customers by telecom companies before issuing SIM cards. Alongside, experts have flagged a provision in the new draft, which mandates seeking authorisation for establishing, operating, maintaining or expanding telecommunication networks and for even possessing radio equipment.
Medianama’s Nikhil Pahwa opined that this provision could be used for mandating permission to offer online services.
“Online services will require authorisation: Check last tweet (on messaging), & apply auth clause… to email, cloud, streaming, SaaS…anything. You’ll need Indian govts permission to start your biz. Meet @DoT_India’s Telecom Bill red tape,” said Pahwa.
The Telecommunication Bill, 2023 also grants the Centre the power to intercept ‘any message or class of messages’ in the interest of public safety and during public emergencies. This has not gone down well with critics who have said that the same rule could be extended to online services and could lead to a surveillance state.
Pahwa also raised concerns over the bill that also gives the Centre the power to take over the ‘control and management’ or suspend the operation of any ‘telecommunication services, or any telecommunication network or part thereof, connected with such telecommunication services’ in the national interest.
However, the new bill recognises satellite communication, which sets the stage for the allocation of satellite spectrum to private players through administrative processes. Simply put, this charts out a licensing regime for the satcom licence applicants rather than assignment through an auction process.
The new draft also renames the Universal Service Obligation Fund as ‘Digital Bharat Nidhi’ and allows the use of the fund for research and development.
“The Central Government may by rules provide for measures for protection of users… including measures such as: (a) the prior consent of users for receiving certain specified messages…; (b) the preparation and maintenance of one or more registers, to be called as “Do Not Disturb” register, to ensure that users do not receive specified messages or class of specified messages without prior consent; or (c) the mechanism to enable users to report any malware or specified messages received in contravention of this section,” the new draft added.
Mixed Response To Telecom Bill
Meanwhile, the industry body Internet and Mobile Association of India (IAMAI) termed the bill ‘progressive’ and lauded the provisions for administrative assignment of spectrum for Global Mobile Personal Communication by Satellites (GMPCS).
“IAMAI hails the Bill as progressive especially since internet companies have been decisively kept out of the ambit of the final version of the Bill… The time-tested distinction between telecom spectrum controlling entities (which are regulated) and spectrum using companies should be maintained as it has been the basis that has allowed innovation and deeper penetration of the internet in India,” the industry body said.
IAMAI represents more than 600 Indian digital startups and global big tech giants such as Google, Meta, Paytm, Infibeam Avenues, and PhonePe, among others.
Chiming in, telecom body COAI’s director general Lt. Gen. Dr SP Kochhar also welcomed the new bill and termed provisions of the draft ‘progressive’ and enabler of ease of doing business.
Meanwhile, the Internet Freedom Foundation (IFF) slammed the bill and cited new and ‘some same old, glaring’ concerns. Flagging the definition of telecom services as ambiguous, the IFF said that the terminology was much shorter and did not amply make clear that internet services such as messaging would not come under its ambit.
“We stand against the introduction of the 2023 Telecom Bill in the Parliament, which continues the pattern of excessive centralisation & control with the xecutive. We’ve said it before, we’ll say it again, this bill needs to go… And be replaced with a rights-centric version,” the IFF added.
With reactions expected to trickle in from more quarters, it remains to be seen whether further changes will be made in the new draft. That said, Indian startups and big tech giants appear to have avoided a major pitfall even as Indian startups continue to tread on the regulatory tightrope.
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